The NSA wins again. You lose

posted by Joshua Kopstein
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2 years ago

After nearly a year of revelations about the shocking extent of the National Security Agency’s surveillance efforts, lawmakers have finally passed legislation limiting the agency’s ability to collect information on American citizens. But if you were hoping for the kind of rock-solid reform that guarantees the agency won’t be able to cast enormous nets for your phone and Internet data, don’t hold your breath.

The USA Freedom Act, which passed Thursday in the House of Representatives 303-121, was initially lauded by privacy advocates and tech companies as a major step forward in balancing Americans’ privacy with the need for foreign intelligence. But thanks to quietly applied pressure from the intelligence community, the bill is now a very different animal from the one that passed unanimously in the House Judiciary Committee—so much so that many of its biggest cheerleaders have jumped ship.

Another red flag came as the White House announced its support (PDF) for the amended bill, saying it would “provide the public greater confidence in our programs and the checks and balances in the system.” Kevin Bankston, a policy director at the New America Foundation, said, “Either hell has frozen over or it’s been totally watered down.”

In many ways the USA Freedom Act was meant to be an antidote to the much-derided USA Patriot Act. When Congress passed the Patriot Act just weeks after 9/11, there was virtually no opposition to expanding government surveillance powers from either side of the aisle. In fact, only a single senator, Russ Feingold of Wisconsin, took the unpopular position of rejecting the bill, warning fellow lawmakers that it would allow the government to “go on a fishing expedition and collect information on virtually anyone,” as long as it claims the information is “relevant” to a terrorism investigation.

Fast-forward to 2013, when documents obtained by Edward Snowden revealed the government had actually gone far beyond what the law proscribed, radically reinterpreting in secret the law’s notion of “relevance” to allow the mass collection of phone records from virtually every American citizen. It created, in effect, a body of secret law concealed from the American public through court opinions issued by clandestine intelligence tribunals—many of which remain classified.

The goal of the Freedom Act was simple: end bulk collection on Americans and impose new transparency requirements on surveillance orders. But after amendments were pushed through—without debate by the House Rules Committee—after backroom meetings with members of the intelligence community, the bill became too bitter a pill for NSA reformers to swallow. Many of those who hyped the legislation in its initial stages pulled their support, worried a “gutted” bill would muzzle future calls for more comprehensive reform.